Another First Amendment Issue

I wanted to follow up on Dave Statter’s post about the Miami Dade helicopter video and the possible violation of the photographer’s First Amendment Rights.

From a legal perspective – everyone – all of us – have a Constitutional Right to cover the news. The right is not limited to members of the press, but extends to everyone.

Included in that right is the right to photo and video things that happen in public, and particularly the right to film government employees doing their jobs.

When a government employee interferes with the exercise of that right, it violates the First Amendment rights of the photographer. Anyone who violates a photographer’s First Amendment rights could be facing a costly lawsuit in federal court.

Having said that, there are some things we as emergency responders are allowed to do with regard to photographers. We are allowed to create safety zones to protect members of the public. We are also allowed to establish reasonable work zones so that members of the public are not interfering with our operations.

These safety and work zones cannot be established just for photographers. They have to be zones that all members of the public are excluded from. Once they are established we can require that photographers remain on the side of the line where the public is allowed.

The video certainly shows how things can become ugly when the establishment of those zones is not made clear. I am not going to speculate on who was right or who was wrong in this case. Take away number one is – we need to avoid getting in this kind of situation in the first place!!!!

Take away number two is once we find ourselves in this situation we need to have some prepared language to use to explain what we are doing and why… such as “Sir, I need you to step back for your own safety… that prop wash could harm you. We need to move everyone back. This is for your own safety”.

Most professional photographers and many amateur photographers are well versed on their First Amendment rights – and know once you mention safety… and enforce the safety zone to everyone… they have to comply. Anything short of that is likely to result in some pushback as was the case here. “Because I said so”… is probably not a satisfactory response when someone’s Constitutional Rights are involved.


About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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